Newhouse v. Simino

• Decision Date: 29 January 1892
• Parties: NEWHOUSE v. SIMINO.
• Court: Washington Supreme Court

29 P. 263

3 Wash. 648

NEWHOUSE v. SIMINO.

Supreme Court of Washington

January 29, 1892

Appeal from superior court, Douglas county; WALLACE MOUNT, Judge.

Proceedings under Acts 1887-88, p. 216, between Eleanor Newhouse and Joseph Simino to determine claims to certain town-site lands. Judgment for defendant. Plaintiff appeals. Reversed.

J. P. Moore and Geo. A. Allen for appellant.

R M. Starr, for respondent.

HOYT J.

The town-site of Waterville was located on public lands. Entry thereof as such town-site was duly made by the judge of probate of the proper county on the 26th day of January 1889. The provisions of the act of congress under which such entry was made are substantially as follows: "Whenever any portion of the public lands of the United States have been or shall be settled upon and occupied as a town-site, and therefore not subject to entry under the agricultural pre-emption laws, it shall be lawful, in case such town shall be incorporated, for the corporate authorities thereof, and, if not incorporated, for the judge of the county court in which such town may be situated, to enter at the proper land-office, and at the minimum price, the land so settled and occupied, in trust for the several use and benefit of the occupants thereof, according to their respective interests, the execution of which trust, as to the disposal of the lots in such town and the proceeds of the sale thereof, to be conducted under such rules and regulations as may be prescribed by the legislative authority of the state or territory in which the same may be situated." See Act March 2, 1867, (14 St. at Large, p. 541.) The legislature of the territory of Washington duly passed an act which purported to provide regulations as provided for in said act of congress. Acts 1887-88, p. 216. Each of the parties to this action claimed title to lot 15, in block 6, of said town-site by virtue of having been occupants thereof as required by said act. Their respective claims were duly filed with said judge of probate, and by him duly certified to the superior court of Douglas county, as required by said act of the legislature. The appellant was denominated "plaintiff," and the respondent "defendant," as required by said act. The cause was tried by a jury, and a verdict and judgment rendered for defendant. There was proof tending to show that plaintiff was an occupant of the lot at the date of the entry. It also appeared from the proofs that the defendant was not an occupant at the date of said entry, but was such occupant at the date of the issuance of the patent to said judge of probate.

That we may correctly determine the rights of the parties under such circumstances, it is necessary to understand the nature of the grant made by said act of congress, and when the same took effect. As to the first, there is no great difference between the parties; as to the second, the contention of appellant is that the grant took effect fully and completely at the date of the entry, while the respondent claims that any one who occupied a lot at the date of the patent took thereunder, even although his occupancy did not extend back to the date of entry. While, as we have stated above, there does not seem to be much dispute as to the nature of the grant, yet the above contention makes it necessary that we should examine it. What, then, is the nature of the grant? We think it twofold: (1) A several grant to the several occupants; and (2) a grant of all unoccupied lots for public purposes to all the occupants as an aggregation. This latter grant does not very clearly appear from the act of congress for, if we adhere to the exact language of the granting portion thereof, there would seem to be only a several grant to the several occupants, and no grant of anything further. But looking at the whole section, and especially at that provision which provides for the grant conforming to regular subdivisions as established by the United States survey, and taking into consideration the fact that the several occupancies, taken together, would never correspond exactly to such government subdivisions, it seems clear that congress intended to grant other land than that which was actually occupied by the individual settlers. This seems to us to be a reasonable construction of the language used, and such has been the holding of the courts. See In re Selby, 6 Mich. 193; Castner v. Gunther, 6 Minn. 119, (Gil. 63;) Town Co. v. Maris, 11 Kan. 128; Jones v. City of Petaluma, 38 Cal. 397. It is true that the case of Lechler v. Chapin, 12 Nev. 65, by inference establishes a different doctrine; but we are not satisfied to follow that case, especially as this precise question was not necessarily involved. See concurring opinion of BEATTY, J. If this is the nature of the...